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Preservation and protection for our pond friends?

The Supreme Court has granted certiorari in a case involving an endangered species of frog to determine whether the designation of privately-owned land as “critical habitat” is authorized under the Endangered Species Act.

Photo: The Nature Conservancy, "Dusky Gopher Frog," (Courtesy of Google Images)

The Supreme Court of the United States agreed on January 25, 2018 , to hear a challenge by Louisiana landowners to the U.S. Fish and Wildlife Service’s authority under the Endangered Species Act.  The dispute arose when the Fish and Wildlife Service designated 1,544 acres of privately-owned land in the St. Tammany Parish of Louisiana as “critical habitat” for the purpose of conserving an elusive amphibian known as the dusky gopher frog.  The Weyerhauser Co., one of the petitioners in this case, planned to use the land for residential and commercial development, as well as to continue its timber operations, but now argues that these plans are stifled by the “critical” label, as federal permits and consultation with the Fish and Wildlife Service will be required before any work on the property may begin.  Without the planned development, the petitioners estimate a significant reduction in the value of their land by nearly $34 million.

Ultimately, the petitioners contend, the government action amounts to an illegal taking costing them tens of millions of dollars.  

The petitioners’ primary contention against the Fish and Wildlife Service’s designation is that the frogs have not been seen on the subject land since 1965 and today only inhabit an area nearly 50 miles away.  Additionally, their property currently lacks certain “habitat features,” including a herbaceous undergrowth and an open forest canopy, which are necessary for the species to survive there.  The land would only become a suitable frog habitat with significant property modifications, requiring the landowners to alter their present timber management practices, which they do not intend to do, and which the government concedes it cannot compel them to do.  Ultimately, the petitioners contend, the government action amounts to an illegal taking costing them tens of millions of dollars.

According to the Center for Biological Diversity, the dusky gopher frog, scientifically-named rana sevosa, currently only has approximately 100 living adults.  Although the frog was once prevalent across Mississippi, Louisiana, and Alabama, the species is now limited to just three ponds in southern Mississippi.  The frog dwells in underground burrows created by gopher tortoises, breeds in ephemeral ponds, and is endemic to the longleaf pine forests located in the coastal plains of the region.  Approximately 98 percent of the longleaf pine forest habitat has disappeared due to both human and natural factors, and now so too have the frogs, which were last observed in Louisiana in 1965.

“Misconceptions exist about how critical–habitat designations impact private property,” the court wrote.  “In short, a critical–habitat designation alone does not require private landowners to participate in the conservation of an endangered species.”

The dusky gopher frog was declared endangered in 2001, and in an effort to conserve the dying species, the Fish and Wildlife Service designated nearly 7,000 acres of land as critical habitat in July 2012.  Under the Endangered Species Act, the Fish and Wildlife Service has the authority to designate “unoccupied” habitat as critical if a “designation limited to the present range would not be adequate to ensure the conservation of the species” and the Fish and Wildlife Service determines the land is “essential for the conservation of the species.”  One of the main disputes between petitioners and the Service concern whether “essential” land must also be “habitable.”

The Fish and Wildlife Service argued the designation of the private property passed muster under the statute, contending: “The final June 2012 Rule designated 6,477 acres in Mississippi and Louisiana, 5,281 acres of which is unoccupied habitat, including the 1,544 acres in [St. Tammany Parish] which [the Service] considers to be, in its totality, the highest quality breeding habitat anywhere in the frog’s [historic] range….  After considering the best available science, including the input of six experts, and the importance of ephemeral ponds to the recovery of the frog, [the Service] reasonably determined that [the subject land] is essential for the conservation of the species.”

Although the frogs no longer live on the St. Tammany Parish lands, the U.S. Court of Appeals for the Fifth Circuit agreed with the Fish and Wildlife Service that those lands are essential.  Some of the factors the court considered particularly important for upholding the critical designation include the fact that the subject land contains five ephemeral ponds—each within hopping distance of the next; dusky gopher frogs lay their eggs only in such temporary ponds, and the St. Tammany Parish land was the frogs’ last known Louisiana breeding ground.  The court also rejected the landowners’ argument that federal government regulation of the private lands was an unconstitutional abuse of power.

The lower court’s ruling gained a lot of attention from property rights activists despite the court’s attempt to dispel such concerns in its ruling.  “Misconceptions exist about how critical–habitat designations impact private property,” the court wrote.  “In short, a critical–habitat designation alone does not require private landowners to participate in the conservation of an endangered species.”  The court also said the designation does not force private landowners to introduce endangered species onto their land or to make modifications to their land.

Solicitor General Noel Francisco says that the Fish and Wildlife Service had the latitude to make the decision under a concept called Chevron deference, which allows government agencies to make reasonable interpretations of ambiguous laws or statutes.

Yet, the petitioners are not convinced that such a designation will result in any beneficial result for the frog species.  The petitioners do believe, on the other hand, that the decision will effect a severe blow to the value of their land.  In their petition for writ of certiorari, the landowners complained that the ruling was unduly burdensome in contrast to the lack of positive benefits it rendered.  The attorney for the landowners argues that the Fish and Wildlife Service has abused its power under the Endangered Species Act, and absent drastic modifications discussed above, the land will remain uninhabitable by the species.

According to the Constitution Daily, the private landowners in this case are supported by a group of 17 states, led by Alabama, in their fight for property rights.  On the other side of the dispute, the Trump administration has filed a brief supporting the Fish and Wildlife Service, which first made its gopher frog decision during the Obama administration.  Solicitor General Noel Francisco says that the Fish and Wildlife Service had the latitude to make the decision under a concept called Chevron deference, which allows government agencies to make reasonable interpretations of ambiguous laws or statutes.

As foreshadowed by the Solicitor General, this case may invite the Supreme Court to revisit the “Chevron deference” principle, which has received somewhat heavy criticism ever since it was established in a landmark 1984 case.  Justice Neil Gorsuch, President Trump’s appointee and the newest member of the high court, is a noted “Chevron deference” skeptic who has referred to the principle as “a judge-made doctrine for the abdication of the judicial duty.”  It seems apparent that the addition of Justice Gorsuch helped get the petitioners’ case before the Supreme Court.

The Court accepted the case for arguments late this Spring and is expected to settle two questions. 

Cynthia Sarthou, executive director of the Gulf Restoration Network, said the suit against the Fish and Wildlife Service is among those disappointed with the Supreme Court’s decision to hear the case.  “The Supreme Court’s ruling is bad news for these endangered frogs,” she said in a report by the Mississippi-based Times-Picayune.  She continued, “For too long the U.S. Fish and Wildlife Service has had to focus its limited resources on defending this decision rather than recovering the frogs and restoring their habitat.”

Sarthou’s complaints of the now six-year long dispute are not in vain.  Having gone through the lower courts and now awaiting to be heard by the Supreme Court, the dusky gopher case may endure longer than the species itself; however, a resolution is in sight.  The Court accepted the case for arguments late this Spring and is expected to settle two questions.  First, does the Endangered Species Act prohibit designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation? The second question is, “whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review?”

Sparking great interest on both sides of the argument, the case is ripe to be heard by the Supreme Court.  Conservationists are hopeful that an affirmation of the critical designation will be the ultimate ruling.  As one of the landowners put it, however, such a decision will cause them to “be stuck with designating 1,500 acres as critical habitat where there are no frogs and won’t be any frogs.”  Whatever the decision, it will undoubtedly be telling for either party, or species, who ultimately wins.

Katie King
About Katie King (13 Articles)
Katie King is a third year law student and serves as Managing Editor for the Campbell Law Observer. Originally from Calabash, NC, Katie went to NC State University where she received a Bachelor of Arts in History. During her second year, Katie worked in real estate at Brady Law Firm located in Raleigh, as well as in the Chambers of The Honorable Judge John M. Tyson at the NC Court of Appeals. Her legal interests include corporate law, real property, and estate planning.